Sri Edigara Yankappa vs Kandeppanavara Mahalingappa
2021 Latest Caselaw 122 Kant

                            1



  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 5TH DAY OF JANUARY, 2021

                      BEFORE

THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

 REGULAR SECOND APPEAL NO.1965 OF 2011 (DEC/INJ)
                       C/w
  REGULAR SECOND APPEAL NO.1966/2011 (INJ)

IN RSA NO.1965/2011
BETWEEN:

1 . SRI EDIGARA YANKAPPA
S/O SHANTHAPPA
AGED ABOUT 62 YEARS

2 . SRI EDIGARA ANJINAPPA
S/O SHANATHAPPA
AGED ABOUT 57 YEARS

BOTH ARE RESIDING AT
VADDINA DADAPURA VILLAGE,
HARAPANAHALLI TALUK,
DAVNAGERE DISTRICT.

                                      ...APPELLANTS

(BY SRI.A NAGARAJAPPA, ADVOCATE)

AND

1 . KANDEPPANAVARA MAHALINGAPPA
S/O NINGAPPA
AGED ABOUT 49 YEARS
ALMARASIKERI VILLAGE
HARAPANAHALLI TALUK,
                           2



DAVANAGERE DSITRICT.
2 . YERADETTINAHALL HANUMANTHAPPA
W/O HALAPPA
AGED ABOUT 46 YEARS
YERADETTINAHALLI VILLAGE,
HARAPANAHALL TALUK
DAVANGERE DISTRICT - 583131

3 . SMT HONNAMMA
W/O LATE KARE HANUMAPPA
AGED ABOUT 69 YEARS

4 . MARUTHEPPA
S/O LATE KARE HANUMAPPA
AGED ABOUT 49 YEARS

5 . NAGAPPA
S/O LATE KARE HANUMAPPA
AGED ABOUT 47 YEARS

6 . MANJAPPA
S/O LATE KARE HANUMAPPA
AGED ABOUT 42 YEARS

7 . THINDAPPA
S/O LATE KARE HANUMAPPA
AGED ABOUT 40 YEARS

8 . S.KARIYAMMA
S/O LATE KARE HANUMAPPA
AGED ABOUT 44 YEARS

ALL ARE RESIDING AT
THIPPANAYAKANAHALLI VILLAGE,
HARAPANAHALL TAULK
DAVANGERE DISTRICT - 583131.

                                    .....RESPONDENTS
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(BY SRI.UMESHA MURTHY J M, ADVOCATE FOR C/R.5)

     THIS RSA IS FILED UNDER SECTION 100 READ
WITH ORDER 42 RULE 1 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 27.07.2011 PASSED IN
R.A.NO.22/2010 ON THE FILE OF THE SENIOR CIVIL
JUDGE, HARAPANAHALLI, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED
08.07.2010 PASSED IN O.S.NO.91/2007 ON THE FILE OF
THE CIVIL JUDGE, HARAPANAHALLI.

IN RSA NO.1966/2011

BETWEEN

1 . SRI EDIGARA ANJINAPPA
S/O SHANATHAPPA
AGED ABOUT 57 YEARS

2 . SRI EDIGARA YENKAPPA
S/O SHANTHAPPA
AGED ABOUT 62 YEARS

BOTH ARE RESIDING AT
VADDINA DADAPURA VILLAGE,
HARAPANAHALLI TALUK,
DAVNAGERE DISTRICT - 583131.

3. YAMUNAVVA
D/O SHANTHAPPA
AGED ABOUT 44 YEARS
UPPANNAIKANAHALLI VILLAGE
HAGARI - BOMMANAHALL TALUK
BELLARY DISTRICT - 583212.

                                     ...APPELLANTS

(BY SRI.A NAGARAJAPPA, ADVOCATE)
                           4



AND

1 . SMT HONNAMMA
W/O LATE KARE HANUMAPPA
AGED ABOUT 69 YEARS

2 . MARUTHEPPA
S/O LATE KARE HANUMAPPA
AGED ABOUT 49 YEARS

3 . NAGAPPA
S/O LATE KARE HANUMAPPA
AGED ABOUT 47 YEARS

4 . MANJAPPA
S/O LATE KARE HANUMAPPA
AGED ABOUT 42 YEARS

5 . THINDAPPA
S/O LATE KARE HANUMAPPA
AGED ABOUT 40 YEARS

6 . S.KARIYAMMA
S/O LATE KARE HANUMAPPA
AGED ABOUT 44 YEARS

ALL ARE RESIDING AT
THIPPANAYAKANAHALLI VILLAGE,
HARAPANAHALL TAULK
DAVANGERE DISTRICT - 583131.

                                 .....RESPONDENTS

(BY SRI.J M UMESHA MURTHY, ADVOCATE FOR C/R3)

     THIS RSA IS FILED UNDER SECTION 100 READ
WITH ORDER 42 RULE 1 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 27.07.2011 PASSED IN
R.A.NO.23/2010 ON THE FILE OF THE SENIOR CIVIL
                              5



JUDGE, HARAPANAHALLI, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED
08.07.2010 PASSED IN O.S.NO.64/2007 ON THE FILE OF
THE CIVIL JUDGE, HARAPANAHALLI.

     THESE REGULAR SECOND APPEALS COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:


                         ORDER

These two second appeals are filed by the

plaintiffs in O.S. No.91/2007 challenging the judgment

and decree passed in R.A.No.22/2010 and

R.A.No.23/2010. RSA No.1965/2011 is filed

challenging the judgment and decree passed in

R.A.No.22/2010 reversing the judgment and decree in

O.S.No.91/2007, whereas RSA No.1966/2011 is filed

challenging the judgment and decree passed in

R.A.No.23/2010 reversing the judgment and decree

passed in O.S.No.64/2007.

2. The facts leading to the case are as under:

Original plaintiff namely Kare Hanumappa who is

the ancestor of respondent Nos.3 to 8 filed a bare suit

for injunction in O.S.No.64/2007 seeking injunction

against the plaintiffs in O.S.No.91/2007 i.e., the

present appellants herein.

3. The said original plaintiff namely Kare

Hanumappa specifically contended in O.S.No.64/2007

that he has acquired valid right and title over the suit

schedule property under the registered sale deed

dated 21.04.1973 executed by one Edigara

Shanthappa for a valuable sale consideration of

Rs.400/- who is none other than father of appellants

herein. The original plaintiff in O.S.No.64/2007 further

specifically pleaded that pursuant to execution of

registered sale deed, father of the appellants herein

delivered the possession in favour of original plaintiff

in O.S.No.64/2007. It was further pleaded that the

said Kare Hanumappa i.e., plaintiff in O.S.No.64/2007

was in exclusive peaceful possession and enjoyment

without anybody's disturbance. At para No.4 of the

plaint, the plaintiff in O.S.No.64/2007 specifically

contended that the present appellants-defendants

have no semblance of right, title and interest over the

suit schedule land. The original plaintiff further

specifically contended in the plaint that on

16.04.2007, when he was working in the field i.e., the

suit land, the present appellants-defendants

obstructed the plaintiff's peaceful possession and

enjoyment over the suit land. It is also stated at para

No.4 of the plaint that the appellants-defendants are

highly influential persons and with the aid of rowdy

elements, tried to dispossess the plaintiff from the suit

land. It was also contended in para No.4 of the plaint

that the plaintiff is a poor agriculturist and he is not in

a position to resist the illegal acts of the defendants-

appellants. On these set of pleadings, the father of

respondent Nos.3 to 8 filed a bare suit for injunction

in O.S.No.64/2007.

4. As a counter blast, it appears that the

present appellants also filed a suit for declaration and

injunction in O.S.No.91/2007. The present appellants

specifically contended that the suit schedule land is

owned by their father by name Edigara Shanthappa.

It was also contended in the plaint that after the death

of Edigara Shanthappa, the present appellants being

the legal heirs of Edigara Shanthappa have inherited

the suit schedule property and they are in peaceful

possession and enjoyment of the suit schedule

property. It was also contended by the appellants

that they are paying land revenue to the Government

and the respondents have no right, title and interest

over the suit schedule property. The present

appellants pleaded in the plaint that on 25.05.2007,

the present respondent Nos.3 to 8 had illegally

entered into the suit schedule property and tried to

obstruct the agriculture work. The appellants have

also specifically contended that the suit schedule

property was granted to late Edigara Shanthappa by

the State Government vide grant order dated

20.05.1961. It is also contended that there was a

non-alienation clause prohibiting the grantee from

alienating the suit land for a period of 15 years. It

was also contended that the appellants father namely

Edigara Shanthappa has not at all executed any

registered sale deed in favour of late Kare Hanumappa

as alleged by respondent Nos.3 to 8 in

O.S.No.64/2007. On these set of pleadings, the

present appellants in O.S.No.91/2007 filed suit for the

relief of declaration of title and for consequential relief

of injunction.

5. Based on the rival contentions, the trial Court

framed the following issues.

IN O.S.No.64/2007

1) Whether plaintiff proves that he is in peaceful possession and enjoyment of the suit schedule property as on the date of the suit?

2) Whether plaintiff proves that the defendants have interfered with his peaceful possession and enjoyment of the suit schedule property?

3) Whether the plaintiff is entitled for the relief as prayed?

4) What order or decree?

IN O.S.No.91/2007

1) Whether plaintiffs prove that they inherited the suit property from their father?

2) Whether plaintiffs prove that they are in possession of the suit property?

3) Whether plaintiffs prove the alleged obstruction by the defendants for the enjoyment of suit property?

4) Whether plaintiffs entitled for the relief?

5) What order or decree?

6. The trial Court clubbed both the suits and

common evidence was recorded in O.S.No.91/2007.

The appellants in support of their contention lead in

evidence and plaintiff No.1 and one independent

witness examined as P.Ws.1 and 2. To substantiate

their oral evidence, the appellants relied on

documentary evidence vide Exs.P.1 to 8. Respondent

Nos.3 to 8 to refute the contentions of appellants

examined defendant No.3(c) as D.W.1 and three

independent witnesses as D.Ws.2 to 4 and by way of

rebuttal evidence, respondent Nos.3 to 8 relied on

documentary evidence vide Exs.D.1 to 11.

7. The learned trial Judge having examined the

oral and documentary evidence has recorded a finding

that the father of the appellants herein namely

Edigara Shanthappa has alienated the suit land during

the subsistence of non-alienation clause. The learned

trial Judge was of the view that the grant was made

on 20.05.1961 and as such, the sale deed executed by

Edigara Shanthappa on 25.04.1973 is hit by

non-alienation clause and as such, it is a void

document. The learned trial Judge was of the view

that since the sale deed is a void document, the father

of respondent Nos.3 to 8 namely Kare Hanumappa

would not acquire any right and title over the suit

land. The learned trial Judge was of the view that

since Ex.D.1 is a void document and the same would

not amount to transfer of title to respondent Nos.3 to

8, neither the original plaintiff namely Kare

Hanumappa nor the legal representatives of Kare

Hanumappa who are arraigned as respondent Nos.3 to

8 would acquire any valid right, title and possession

over the suit land. The learned trial Judge by

answering Issue No.1 in the affirmative in

O.S.No.91/2007 has come to the conclusion that the

present appellants who are the plaintiffs in

O.S.No.91/2007 have inherited the suit schedule

property from their father. Learned trial Judge by

answering Issue No.2 in the affirmative in

O.S.No.91/2007 has also come to the conclusion that

the present appellants who are the plaintiffs in

O.S.No.91/2007 have established their lawful

possession and enjoyment over the suit schedule

property. Based on these set of findings, the learned

trial Judge has decreed the suit of the appellants in

O.S.No.91/2007 declaring them to be absolute owners

and has consequently granted injunction restraining

respondent Nos.3 to 8 from interfering with the

peaceful possession of the suit schedule property.

Learned trial Judge having answered issue Nos.1 to 3

in O.S.No.91/2007 in the affirmative has proceeded to

answer Issue Nos.1 and 2 in O.S.No.64/2007 in the

negative. Learned trial Judge has recorded a finding

that respondent Nos.3 to 8 have not established that

they are in lawful possession over the suit land.

Having decreed the suit in O.S.No.91/2007, the

learned trial Judge has proceeded to dismiss the suit

of respondent Nos.3 to 8 in O.S.No.64/2007.

8. Respondent Nos.3 to 8 being aggrieved by

dismissal of O.S.No.64/2007 and the decree in favour

of the present appellants in O.S.No.91/2007, filed two

independent appeals before the First Appellate Court.

Respondent Nos.3 to 8 filed regular appeal in

R.A.No.22/2010 challenging the judgment and decree

passed in O.S.No.91/2007. Respondent Nos.3 to 8

also filed regular appeal in R.A.No.23/2010

challenging the judgment and decree in

O.S.No.64/2007.

9. The First Appellate Court having formulated

relevant points for consideration has proceeded to

reassess the entire oral and documentary evidence on

record. The First Appellate Court on re-appreciation of

oral and documentary evidence has answered point

Nos.1 and 2 in the affirmative. The First Appellate

Court has recorded a finding that since the alienation

is during the subsistence of non-alienation clause, the

deceased Edigara Shanthappa who is the father of the

appellants herein was yet to become absolute owner

of the said property. Though there is a grant in favour

of the father of appellants herein, however, he could

not have alienated the suit schedule property during

the subsistence of non-alienation clause. The First

Appellate Court was of the view that the present

appellants who filed suit in O.S.No.91/2007 have not

chosen appropriate forum. The violation, if any, on

account of sale by Edigara Shantappa cannot be dealt

with and examined in a civil proceedings. If there is

any violation of conditions enumerated in the grant

order, there is a specific remedy available under the

Act. On these set of reasoning, the First Appellate

Court was of the view that the question of title cannot

be gone into. But, however, the First Appellate Court

was of the view that Edigara Shanthappa has

executed a registered sale deed dated 21.04.1973,

from which it is clearly evident that pursuant to

alienation, he delivered the possession to the father of

respondent Nos.3 to 8. In this background, the First

Appellate Court was of the view that trial Court has

erred in declaring the ownership of legal

representatives of Edigara Shanthappa i.e., present

appellants herein. On these set of pleadings, the First

Appellate Court has proceeded to allow the appeal

filed by respondent Nos.3 to 8. The First Appellate

Court dismissed the suit filed by the appellants in

O.S.No.91/2007 and further by reversing the decree,

decreed the suit in O.S.No.64/2007 by recording a

finding that respondent Nos.3 to 8 pursuant to

registered sale deed are in possession and thereby

granted perpetual injunction restraining the present

appellants from interfering with the peaceful

possession and enjoyment of respondent Nos.3 to 8

over the suit schedule property.

10. Shri.A.Nagarajappa, learned counsel for

appellants would vehemently argue and contend

before this Court that the First Appellate Court grossly

erred in interfering with the judgment and decree of

the trial Court. He would submit to this Court that the

clinching evidence on record would clearly

demonstrate that the sale deed executed by father of

the appellants herein in favour of father of respondent

Nos.3 to 8 namely Kare Hanumappa was during the

subsistence of non-alienation clause. Once that is

established, then respondent Nos.3 to 8 cannot assert

any right over the suit schedule property. He would

further contend that Ex.D.1 relied on by respondent

Nos.3 to 8 is a void document and would not create

any right in favour of respondent Nos.3 to 8. To

buttress his arguments, he would rely on the

judgment rendered by the Hon'ble Apex Court in the

case of KALIYAMMA AND OTHERS VS. DEPUTY

COMMISSIONER, CHITRADURGA DISTRICT AND

OTHERS reported in ILR 2008 KAR 1805 and the

judgment rendered by this Court in the case of

K.ABDUL HAMEED AND OTHERS VS. STATE OF

KARNATAKA AND OTHERS reported in 1999(1)

KAR.L.J.502 and in the case of SMT.PREMABAI VS.

STATE OF KARNATAKA, BY SECRETARY,

REVENUE DEPARTMENT AND OTHERS reported in

ILR 2002 KAR 2515. Relying on these judgments,

the learned counsel would vehemently argue and

contend before this Court that the judgment and

decree of the First Appellate Court suffers from

serious infirmities.

11. Heard learned counsel for the appellants

and perused the records.

12. On perusal of the records, it is forthcoming

that the father of the appellants namely Edigara

Shanthappa was granted the suit land. The grant in

favour of Edigara Shanthappa by the revenue

authorities is dated 20.05.1961. Though the learned

counsel appearing for the appellants vehemently

argued by contending that there is violation of

conditions enumerated in the grant order, however,

he would fairly submit that it is a general grant and

not under the provisions of Prohibition of Transfer of

Certain Lands Act. It is evident from the records that

Edigara Shanthappa sold the suit land in favour of

father of respondent Nos.3 to 8 under registered sale

deed dated 25.04.1973 for a sale consideration of

Rs.400/-. The respondent Nos.3 to 8 to assert their

right have relied on the registered sale deed executed

by the father of appellants herein and same is

produced and marked as Ex.D-1. On perusal of

Ex.D-1, it is clearly evident that Edigara Shanthappa

sold the suit land and possession was also delivered in

favour of Kare Hanumappa who is none other than the

father of respondent Nos.3 to 8. If this evidence is

taken into consideration, then this Court is of the view

that the appellants herein cannot assert their right

and title over the suit land. Their father Edigara

Shanthappa having dealt with the property under

registered sale deed dated 25.04.1973, never

asserted his right over the suit land. It appears after

his death, the present appellants herein are claiming

to be the legal heirs of the deceased Edigara

Shanthappa and are asserting that they have inherited

the suit schedule property.

13. On perusal of the records, as on the date of

filing of the suit in the year 2007, the property was

not all available with the family of the appellants and

their father Edigara Shanthappa has dealt with the

property as per Ex.D-1. The appellants have also

failed in establishing that they are in lawful

possession. The fact that appellants are Legal

Representatives of original grantee i.e., deceased

Edigara Shanthappa, that in itself would not give a

right in favour of the appellants herein to file a

comprehensive suit seeking relief of declaration and

relief of injunction on the ground that the land in

question was granted in favour of their father. Even if

there is a violation of the condition enumerated in the

grant order, that in itself would not create a right in

favour of the appellants. If there is any violation, the

same has to be dealt with in accordance with law.

14. The controversy revolving around

alienation during non-alienation period cannot be

adjudicated and examined in a civil proceedings. The

appellants also cannot assert possessory rights over

the suit schedule land and they are estopped under

Sections 90 and 91 of the Indian Evidence Act. If the

registered sale deed indicates that possession was

parted by Edigara Shanthappa, the said recitals

indicating delivery of possession would bind not only

original grantee, i.e., Edigara Shanthappa, but also

the present appellants who are claiming under Edigara

Shanthappa. All these material aspects are taken into

consideration by the First Appellate Court. The First

Appellate Court has dealt with the material

controversy exhaustively between the parties and on

re-assessing the entire oral and documentary

evidence and as a final fact finding authority has dealt

with all the issues and has rightly come to conclusion

that the respondent Nos.3 to 8 have established their

lawful possession over the suit land. The Appellate

Court has also rightly set-aside the decree in favour of

the appellants passed in O.S.No.91/2007. If Edigara

Shanthappa has dealt with the property, the suit land

which is the subject matter of the suit is not at all

available with the family of the appellants herein and

thereby the appellants cannot claim that they have

inherited the suit land which is already dealt with by

their father Edigara Shanthappa as per Ex.D-1.

15. This Court has gone through the entire

records. The judgment relied on by the learned

counsel appearing for the appellants is not at all

applicable to the present case on hand. The grounds

urged in both the second appeals do not indicate any

substantial questions of law that would arise for

consideration in the present appeals.

Accordingly, both the appeals are dismissed.

SD/-

JUDGE NBM/CA